AB40: Bill Text

AB40,606,5 2. An individual who resides in a nursing home, intermediate care facility, inpatient psychiatric hospital, or other residential care facility and whose care in the facility is paid for by Medical Assistance.

AB40,606,9 3. A child residing in a foster care placement under the care and placement responsibility of a county department under s. 46.215, 46.22, or 46.23 or, in a county with a population of 500,000 or more, under the care and placement responsibility of the department of children and families.

AB40,1221 Section 1221. 49.848 of the statutes is created to read:

AB40,606,12 49.848 Treatment of real property owned by certain public assistance recipients. (1) Definitions. In this section:

AB40,606,13 (a) "Department" means the department of health services.

AB40,606,19 (b) "Public assistance" means any services provided as a benefit under a long-term care program, as defined in s. 49.496 (1) (bk), that may be recoverable under s. 49.496 (3) (a); medical assistance under subch. IV that may be recoverable under s. 49.496 (3) (a); long-term community support services funded under s. 46.27 (7) that may be recoverable under s. 46.27 (7g) (c) 1.; or aid under s. 49.68, 49.683, or 49.685 that may be recoverable under s. 49.682 (2) (a).

AB40,606,20 (c) "Recipient" means a person who received public assistance.

AB40,606,23 (2) Creation of documents for recording. The department shall create all of the following for recording in the office of the register of deeds in the real estate records index:

AB40,607,5 (a) A document entitled "REQUEST FOR NOTICE OF TRANSFER OR ENCUMBRANCE AND NOTICE OF POTENTIAL CLAIM," which shall require notice to the department with respect to any transfer of title to, placement of an encumbrance on, or termination of an interest in, the property to which the document relates and which shall provide notice that the department may have a claim against the property to which the document relates on the basis of providing public assistance to an individual who has or had a legal interest in the property.

AB40,607,12 (b) A document entitled "TERMINATION OF REQUEST FOR NOTICE OF TRANSFER OR ENCUMBRANCE AND NOTICE OF POTENTIAL CLAIM," which shall provide notice that, with respect to property against which a REQUEST FOR NOTICE OF TRANSFER OR ENCUMBRANCE AND NOTICE OF POTENTIAL CLAIM has been recorded, no notice to the department is required when title to the property is transferred, an encumbrance is placed on the property, or an interest in the property is terminated.

AB40,607,22 (c) A document entitled "CERTIFICATE OF CLEARANCE," which shall provide notice that, with respect to property against which a REQUEST FOR NOTICE OF TRANSFER OR ENCUMBRANCE AND NOTICE OF POTENTIAL CLAIM has been recorded, but against which a TERMINATION OF REQUEST FOR NOTICE OF TRANSFER OR ENCUMBRANCE AND NOTICE OF POTENTIAL CLAIM has not been recorded, the department has no objection to the transfer of title to, placement of an encumbrance on, or termination of an interest in, the property, and that no notice to the department is required in the future when title to the property is transferred, an encumbrance is placed on the property, or an interest in the property is terminated.

AB40,608,3 (3) Recording of request for notice and termination of request for notice. (a) 1. Whenever an individual becomes eligible for public assistance, and at any time during the time that an individual is eligible for public assistance, the department may record a REQUEST FOR NOTICE OF TRANSFER OR ENCUMBRANCE AND NOTICE OF POTENTIAL CLAIM if the individual has any of the following ownership interests in real property:

AB40,608,5 a. A current ownership interest in real property, including a marital property interest.

AB40,608,9 b. At any time within 5 years before the individual applied for public assistance or during the time that the individual is eligible for public assistance, a marital property interest in real property with his or her current spouse, if that spouse currently holds title to the real property.

AB40,608,12 2. The department shall record the document in the office of the register of deeds of the county in which the real property under subd. 1. a. or b., whichever is applicable, is located.

AB40,608,14 3. In this paragraph, an interest in real property includes a vendee's or vendor's interest in a land contract or an interest in real property held in a revocable trust.

AB40,608,24 (b) Whenever the department determines that, with respect to property against which a REQUEST FOR NOTICE OF TRANSFER OR ENCUMBRANCE AND NOTICE OF POTENTIAL CLAIM has been recorded, the department no longer requires notice when title to the property is transferred, an encumbrance is placed on the property, or an interest in the property is terminated, the department shall record a TERMINATION OF REQUEST FOR NOTICE OF TRANSFER OR ENCUMBRANCE AND NOTICE OF POTENTIAL CLAIM in the office of the register of deeds of the county in which the REQUEST FOR NOTICE OF TRANSFER OR ENCUMBRANCE AND NOTICE OF POTENTIAL CLAIM with respect to the property was recorded.

AB40,609,10 (3m) Disclosure of request for notice. If, in the course of a title search on real property, a title insurance company or agent finds that a REQUEST FOR NOTICE OF TRANSFER OR ENCUMBRANCE AND NOTICE OF POTENTIAL CLAIM has been recorded against the property but a TERMINATION OF REQUEST FOR NOTICE OF TRANSFER OR ENCUMBRANCE AND NOTICE OF POTENTIAL CLAIM has not been recorded against the property, the title insurance company or agent shall disclose that a REQUEST FOR NOTICE OF TRANSFER OR ENCUMBRANCE AND NOTICE OF POTENTIAL CLAIM has been recorded against the property in any report submitted preliminary to issuing, or in any commitment to offer, a certificate of title insurance for the real property.

AB40,609,18 (4) Transferring, encumbering, or terminating an interest in property; clearance by the department. (a) Any person transferring title to, encumbering, or terminating an interest in, property against which a REQUEST FOR NOTICE OF TRANSFER OR ENCUMBRANCE AND NOTICE OF POTENTIAL CLAIM has been recorded, but against which a TERMINATION OF REQUEST FOR NOTICE OF TRANSFER OR ENCUMBRANCE AND NOTICE OF POTENTIAL CLAIM has not been recorded, shall notify the department of the proposed transfer, encumbrance, or termination of interest.

AB40,609,23 (b) If, on the date that the person sends the notice under par. (a), the recipient who had the ownership interest in the property when the department recorded the REQUEST FOR NOTICE OF TRANSFER OR ENCUMBRANCE AND NOTICE OF POTENTIAL CLAIM is alive, the person may transfer title to, encumber, or terminate an interest in, the property with no further action by the department.

AB40,610,2 (c) If, on the date that the person sends the notice under par. (a), the recipient who had the ownership interest in the property when the department recorded the REQUEST FOR NOTICE OF TRANSFER OR ENCUMBRANCE AND NOTICE OF POTENTIAL CLAIM is deceased, all of the following apply:

AB40,610,5 1. The department shall determine whether it has a claim against the property for amounts paid on behalf of the recipient that are recoverable under s. 46.27 (7g) (c) 1., 49.496 (3) (a), or 49.682 (2) (a).

AB40,610,10 2. If the department determines that it has no claim under subd. 1., the department shall issue to the person seeking to transfer title to, encumber, or terminate an interest in, the real property a CERTIFICATE OF CLEARANCE, which the person shall record along with the instrument transferring title to, encumbering, or terminating the interest in, the property.

AB40,610,12 3. If the department determines that it has a claim under subd. 1., the department shall follow the procedure under sub. (5).

AB40,610,15 4. Transferring title to, encumbering, or terminating an interest in, the property is not valid unless the department issues to the person, and the person records, a CERTIFICATE OF CLEARANCE.

AB40,610,17 (5) Procedure if department has a claim against real property. (a) This subsection applies in any of the following situations:

AB40,610,19 1. If the department determines that it has a claim against real property under sub. (4) (c) 1.

AB40,611,2 2. Upon the death of a recipient who, immediately before death, had an ownership interest in real property, including a marital property interest, or whose surviving spouse has an ownership interest in real property in which the recipient had a marital property interest with that spouse at any time within 5 years before the recipient applied for public assistance or during the time that the recipient was eligible for public assistance, regardless of whether the department recorded a REQUEST FOR NOTICE OF TRANSFER OR ENCUMBRANCE AND NOTICE OF POTENTIAL CLAIM with respect to the property.

AB40,611,7 (b) Unless the property is being transferred under s. 867.03 or through formal or informal administration of the recipient's estate, the department shall send to the person providing the notice to the department under sub. (4) (a), or to the surviving owner of the property, whichever is applicable, a statement of claim that states all of the following:

AB40,611,9 1. That the department has a claim against the property that it intends to recover from the property.

AB40,611,10 2. The amount of and basis for the claim.

AB40,611,14 3. That the person has a right to an administrative hearing under par. (bm), which must be requested within 45 days after the department sent the statement of claim, on the extent and fair market value of the recipient's interest in the property and how to request an administrative hearing.

AB40,611,17 4. That the transferee of the recipient's interest in the property or the surviving owner of the property may request from the department a hardship waiver and how to request a hardship waiver.

AB40,611,22 (bm) A person who receives a statement of claim from the department under par. (b) is entitled to and may, within 45 days after the department sent the statement of claim, request a departmental fair hearing on the value of the property and the extent of the recipient's interest in the property. The value of the recipient's interest in the property shall be determined in the manner provided in s. 49.849 (5c).

AB40,612,2 (c) The department may recover against the property in the manner determined by the department to be appropriate, including by placing a lien on the property. Subject to par. (d), the department may enforce a lien on the property by foreclosure in the same manner as a mortgage on real property.

AB40,612,4 (d) The department may not enforce a lien under par. (c) as long as any of the following is alive:

AB40,612,5 1. The recipient's spouse.

AB40,612,7 2. The recipient's child who is under age 21 or disabled, as defined in s. 49.468 (1) (a) 1.

AB40,612,10 (e) If the recipient's surviving spouse or child who is under age 21 or disabled refinances a mortgage on the property, any lien under par. (c) is subordinate to the new encumbrance.

AB40,612,12 (f) The department shall release a lien under par. (c) that the department could not enforce because of par. (d), if any of the following applies:

AB40,612,15 1. The recipient's surviving spouse or child who is under age 21 or disabled sells the property for fair market value, as described in s. 49.849 (5c) (d), during the spouse's or child's lifetime.

AB40,612,22 2. The recipient's surviving spouse or child who is under age 21 or disabled transfers the property for less than fair market value, as described in s. 49.849 (5c) (d), during the spouse's or child's lifetime, the transferee sells the property during the spouse's or child's lifetime and places proceeds equal to the lesser of the department's lien or the sale proceeds due to the seller in a trust or bond, and the department is paid the secured amount upon the death of the recipient's spouse or disabled child or when the recipient's child who is not disabled reaches age 21.

AB40,613,4 3. The surviving owner or transferee of the property, who is not the recipient's surviving spouse or child who is under age 21 or disabled, sells the property during the lifetime of the recipient's surviving spouse or child who is under age 21 or disabled and places proceeds equal to the lesser of the department's lien or the sale proceeds due to the seller in a trust or bond, and the department is paid the secured amount upon the death of the recipient's spouse or disabled child or when the recipient's child who is not disabled reaches age 21.

AB40,1222 Section 1222. 49.849 of the statutes is created to read:

AB40,613,7 49.849 Recovery of correct payments under certain public assistance programs. (1) Definitions. In this section:

AB40,613,9 (a) "Decedent" means a deceased recipient or a deceased nonrecipient surviving spouse, whichever is applicable.

AB40,613,10 (b) "Department" means the department of health services.

AB40,613,13 (c) "Nonrecipient surviving spouse" means any person who was married to a recipient while the recipient was receiving public assistance and who survived the recipient.

AB40,613,18 (d) 1. "Property of a decedent" means all real and personal property to which the recipient held any legal title or in which the recipient had any legal interest immediately before death, to the extent of that title or interest, including assets transferred to a survivor, heir, or assignee through joint tenancy, tenancy in common, survivorship, life estate, living trust, or any other arrangement.

AB40,613,24 2. Notwithstanding subd. 1., "property of a decedent" includes all real and personal property in which the nonrecipient surviving spouse had an ownership interest at the recipient's death and in which the recipient had a marital property interest with that nonrecipient surviving spouse at any time within 5 years before the recipient applied for public assistance or during the time that the recipient was eligible for public assistance.

AB40,614,4 (e) "Public assistance" means any services provided as a benefit under a long-term care program, as defined in s. 49.496 (1) (bk), medical assistance under subch. IV, long-term community support services funded under s. 46.27 (7), or aid under s. 49.68, 49.683, or 49.685.

AB40,614,5 (f) "Recipient" means a person who received public assistance.

AB40,614,10 (2) Recoverable amounts. (c) There is a presumption, which may be rebutted by clear and convincing evidence, that all property of the deceased nonrecipient surviving spouse was marital property held with the recipient and that 100 percent of the property of the deceased nonrecipient surviving spouse is subject to the department's claim under par. (a).

AB40,614,17 (3) Transmittal of property upon receipt of affidavit. (a) Any property of a decedent that is transferred by a person who has possession of the property at the time of the decedent's death is subject to the right of the department to recover the amounts specified in sub. (2) (a). Upon request, the person who transferred the property shall provide to the department information about the property of the decedent that the person has transferred and information about the persons to whom the property was transferred.

AB40,614,19 (c) An affidavit under this subsection shall contain all of the following information:

AB40,614,21 1. That the department has a claim against the property that it intends to recover from the property.

AB40,614,22 2. The amount of and basis for the claim.

AB40,615,2 3. That the person may have a right to an administrative hearing under sub. (5m), which must be requested within 45 days after the department sent the affidavit, on the extent and fair market value of the recipient's interest in the property.

AB40,615,3 4. How to request an administrative hearing under sub. (5m).

AB40,615,5 5. That the person may request from the department a hardship waiver, if the person co-owned the property with the decedent or is a beneficiary of the property.

AB40,615,6 6. How to request a hardship waiver under subd. 5.

AB40,615,8 (4) Recovery against real property. (c) All of the following apply to a lien under par. (a) that the department may not enforce because of par. (b):

AB40,615,11 1. If the decedent's surviving spouse or child who is under age 21 or disabled refinances a mortgage on the real property, the lien is subordinate to the new encumbrance.

AB40,615,13 2. The department shall release the lien in the circumstances described in s. 49.848 (5) (f).

AB40,615,18 (4m) Allowable costs of sale of real property. (a) Subject to par. (b), if any property of a decedent that is real property has been sold after the death of the decedent, only the following reasonable expenses, if any, incurred in preserving or disposing of the real property may be deducted from the sale proceeds that the department may recover:

AB40,615,20 1. Closing costs of sale, including reasonable attorney fees of the seller, the cost of title insurance, and recording costs.

AB40,615,21 2. Property insurance premiums.

AB40,615,22 3. Property taxes due.

AB40,615,23 4. Utility costs necessary to preserve the property.

AB40,616,3 5. Expenses incurred in providing necessary maintenance or making necessary repairs, without which the salability of the property would be substantially impaired.

AB40,616,6 (b) Any expense under par. (a) may be deducted from the sale proceeds only if it is documented and approved by the department and it was not incurred while any other individual was living on the property.

AB40,616,8 (5c) Value of recipient's interest. For purposes of determining the value of the recipient's interest in property of the decedent, all of the following apply:

AB40,616,12 (a) If the recipient held title to real property jointly with one or more persons other than his or her spouse, the recipient's interest in the real property is equal to the fractional interest that the recipient would have had in the property if the property had been held with the other owner or owners as tenants in common.

AB40,616,15 (b) If the recipient held title to personal property jointly with one or more persons other than his or her spouse, the recipient's interest in the personal property is equal to either of the following:

AB40,616,17 1. The percentage interest that was attributed to the recipient when his or her eligibility for public assistance was determined.

AB40,616,20 2. If the percentage interest was not determined as provided in subd. 1., the fractional interest that the recipient would have had in the property if the property had been held with the other co-owner or co-owners as tenants in common.

AB40,616,25 (c) If the recipient held a life estate in real property, the recipient's interest is equal to the recipient's percentage of ownership in the property based on the recipient's age on the date of death and calculated using the fair market value of the property and life estate-remainderman tables used by the department to value life estates for purposes of determining eligibility for Medical Assistance.

AB40,617,5 (d) A property's fair market value is the price that a willing buyer would pay a willing seller for the purchase of the property. The burden of proof for establishing a property's fair market value is on the surviving owners or beneficiaries, or their representatives. Fair market value must be established through a credible methodology, which may include an appraisal performed by a licensed appraiser.

AB40,617,12 (5m) Fair hearing. A person who has possession of any property of the decedent, or who receives an affidavit from the department under sub. (3) (c) for transmittal of any property of the decedent, is entitled to and may, within 45 days after the affidavit was sent, request a departmental fair hearing on the value of the property and the extent of the recipient's interest in the property, if the property is not being transferred under s. 867.03 or through formal or informal administration of the decedent's estate.

AB40,617,25 (5r) Action or order to enforce recovery. (a) If, after receipt of an affidavit under sub. (3), a person who possesses property of a decedent does not transmit the property to the department or timely request a hearing, the department may bring an action to enforce its right to collect amounts specified in sub. (2) (a) from the property or may issue an order to compel transmittal of the property. Any person aggrieved by an order issued by the department under this paragraph may appeal the order as a class 3 proceeding, as defined in s. 227.01 (3) (c), under ch. 227 by filing a request for appeal, within 30 days after the date of the order, with the division of hearings and appeals created under s. 15.103 (1). The date on which the division of hearings and appeals receives the request for appeal shall be the date of service. The only issue at the hearing shall be whether the person has transmitted the property to the department. The decision of the division of hearing and appeals shall be the final decision of the department.

AB40,618,12 (b) If any person named in an order to compel transmittal of property issued under par. (a) fails to transmit the property under the terms of the order and no contested case to review the order is pending and the time for filing for a contested case review has expired, the department may present a certified copy of the order to the circuit court for any county. The sworn statement of the secretary shall be evidence of the department's right to collect amounts specified in sub. (2) (a) from the property and of the person's failure to transmit the property to the department. The circuit court shall, without notice, render judgment in accordance with the order. A judgment rendered under this paragraph shall have the same effect and shall be entered in the judgment and lien docket and may be enforced in the same manner as if the judgment had been rendered in an action tried and determined by the circuit court.

AB40,618,14 (c) The recovery procedure under this subsection is in addition to any other recovery procedure authorized by law.

AB40,618,15 (6) Payments from recovered amounts.

AB40,1223 Section 1223. 49.85 (title) of the statutes is amended to read:

AB40,618,18 49.85 (title) Certification of certain public assistance overpayments, payment recoveries, and delinquent loan repayments.

AB40,1224 Section 1224. 49.85 (2) (a) (intro.) of the statutes is amended to read:

AB40,619,2 49.85 (2) (a) (intro.) At least annually, the department of health services shall certify to the department of revenue the amounts that, based on the notifications received under sub. (1) and on other information received by the department of health services, the department of health services has determined that it may recover under s. 49.45 (2) (a) 10., 49.497, 49.793, or , 49.847, or 49.849, except that the department of health services may not certify an amount under this subsection unless all of the following apply:

AB40,1225 Section 1225. 49.85 (2) (a) 4. of the statutes is created to read:

AB40,619,5 49.85 (2) (a) 4. If the determination relates to recovery of an amount under s. 49.849, the determination was rendered to a judgment under s. 49.849 (5r) (b).